203
Index to Periodicals Mr. Cooke, though perhaps proper in the con nection in which it was used, has “been extremely
mischievous in its practical effect.”
Marshall
said, "Commerce undoubtedly is trafl'ic, but it
is something more-it is intercourse."
By a
process of distortion, a fallacy traceable to this
source has rown up in the Supreme Court, thinks Mr. Cooke, the fallacy, namely, "that a sale is an essential element of commerce within the meaning of the commerce clause, thus notably in the decisions excluding contracts of insurance from its operation. . . ." Again, "Nothing can be clearer than that it is largely within the power of a state to regulate the conduct and liability of a railroad or other carrier engaged in interstate transportation. . . . The decisions of the Court, taken as a whole,
suggest that, apart from the vague rule that the regulation shall not be ‘onerous’ or ‘amount to a burden,’ the Court recognizes no definite limitation upon the power of a state to regulate the conduct and liability of a carrier, even
though such regulation be for the benefit of interstate travelers and shippers. That is to say, as applied to the agency of transportation, the states have a power of regulation concurrent with that of Congress. . . . "Much of the lan uage of his [Marshall's] opinion has been misc ievous in its effect. The
that of Congress, even as to regulation for the benefit of interstate travelers or shippers. “It follows that the supposed doctrine of the exclusiveness of the power of Congress to regu late
commerce,
has
(apart
from
anomalous
cases) nothing more than a nominal existence." "The Regulation of Interstate Commerce." By Senator Albert E. Cummins. Editorial Review, v. 4, p. 132 (Feb.).
By strengthening the hands of government regulation,
the
Senator
would
"re-introduce
into every field of production and sale the com petition which the Anti-Trust Law is powerless to preserve." See Corporations, Federal Incorporation, Railway Rates. Judicial Interpretation. “Partial Un constitutionality with Special Reference to the Corporation Tax." By Alfred Hayes, Jr. 11 Columbia Law Rariew 120 (Feb.).
The writer considers at len h the rules which have been applied by the upreme Court in determining whether a statute void in part is wholly unconstitutional. This discussion was suggested by Prof. Goodnow's remark (9
fault, however, is not so much to be charged to
Columbia Law Review 649, 653, see 22 Green
him as to those that have made of his opinion a fetish. We have seen that by a process of dis tortion his language has been made the basis of an inadequate and misleading definition of
Bag 128) that if the corporation tax is unconsti tutional as regards income derived from property, this circumstance will not render the whole law unconstitutional. Mr. Hayes says that if the doctrine of the Pollock case as to taxation
commerce, as the word is used in the commerce
clause; also the basis of the alleged doctrine of the exclusiveness of the power of Congress to regulate commerce, which turns out on ex amination to be a mere pseudo-doctrine, an
of income were to be followed, the statute
would not be likely to be sustained on the ground that it is practicable to eliminate from its opera tion income derived from property.
empty form of words, and a source of much confusion. . . . "Marshall and his associates but imperfectly foresaw, if they did at all, the extent to which, many years later, under essentially different conditions, their language would be employed for the purpose of denying to the states the ex
Jr.
ercise 0 their constitutionally reserved powers,
the decisions of Great Britain, of the numerous federal courts, and of the other states, while
and of allowing to Congress the usurpation thereof." "The Pseudo-Doctrine of the Exclusiveness of the Power of Congress to Regulate Com merce." By Frederick H. Cooke. 20 Yale Law Journal 297 (Feb.). "There is a distinction between the subject of transportation, that is, what is transported, and the agency of transportation, in particular, a common carrier. "interference by a state with the subject of transportation. that is to say, with transportation from state to state, is forbidden, not by the commerce clause, but either by a rule of law that antedates and is independent of the commerce clause, or by the Fourteenth Amendment, or by both, by which one has the right, as against any restriction imposed by a state, to transport from state to state. The power of interference by a state with the agency of transportation, thus, by way of regulation of the conduct and liability of a common carrier, is concurrent with
Judicial Precedent. "The Decadence of the System of Precedent." By John S. Sheppard, 24 Harvard Law Review 298 (Feb.).
“How manifestly absurd it is for the practising lawyer even to attempt to keep en rapport with he is laboriously endeavoring to read the opinions of the higher courts of his own state in the few leisure moments he can get from the other de mands of his professional lifel . . . "There is, moreover, another reason for the
decay of our former system of precedent, apart from this breaking down of its own weight. I refer to the tendency of mankind to rebel at the application of an established princi is to a pgrticular case where it seems to wor a hard s ip. . . . “There is no doubt that an intelligent and united efl'ort now can overcome even the difli culties we have been discussin . We can escape the crushing accumulation o authorities and opinions by referring to the broad principle which
any special line of cases lays down rather than to the particular cases themselves with their endless variation. Let us cease to be ‘case lawyers,’ in the sense of seeking a precedent with like facts. . . .
Our system of precedent ought
to be one of principles- not cases. _ Many of these principles are so clearly established that
